The High Court
Case Details
- 1 - RFA NO.721 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO.721 OF 2008 BETWEEN: SRI. GNANESH R S/O. LATE R. RANGAPPA NAYAK, AGED ABOUT 58 YEARS, R/O. NO.38, OPP. VANI VILAS HOSPITAL, BANGALORE-560002. (BY SRI. M.R.RAJAGOPAL, SENIOR ADVOCATE FOR SRI. CHETAN B., ADVOCATE) …APPELLANT AND: 1. SMT. R.MANJULA W/O. LAKSHMI RAJAIAH, D/O. LATE R.RANGAPPA NAYAK, AGED 52 YEARS, C/O. MANJUNATH NO.818, II CROSS, LRM ROAD, NEAR ITTIGEGOODU, INDIRANAGAR MYSORE-570010. 2. SMT. GOWRIAMMA @ GOWRAMMA NAYAK SINCE DEAD REPRESENTED BY LR’s I.E. RESPONDENT NO.3. 3. SRI. R.RANGADAMA NAYAK S/O. MS GORIYAMMA @ GOWRAMMA NAYAK, AGED ABOUT 36 YEARS, R/AT: NO.106, BEHIND GARADI MANE DURGADEVI TEMPLE ROAD, NAZARABAD MYSORE-570010. (BY SRI. M.RAMAKRISHNA, ADV. FOR C/R1; SRI. T.A.KARUMBAIAH, ADV. FOR R3; VIDE ORDER DATED 24.01.2024, R3 IS TREATED AS LR’s OF DECEASED R2) …RESPONDENTS - 2 - RFA NO.721 of 2008 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC PRAYING TO CALL FOR THE RECORDS IN O.S.NO.2486/2002 DISPOSED ON 19-4-2008, ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY (CCH-7); SET ASIDE THE JUDGMENT DATED 19-4-2008 PASSED IN O.S.NO.2486/2002, BY THE XXII ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY (CCH-7),
Legal Reasoning
CONSEQUENTLY DISMISS THE SUIT FILED BY THE PLAINTIFF IS OS NO.2486/2002 AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 25.04.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM:
Legal Reasoning
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CAV JUDGMENT The captioned appeal is filed by defendant No.1 assailing the judgment and decree rendered in O.S.No.2486/2002, wherein suit filed by plaintiff is decreed granting half share in the suit schedule properties. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. - 3 - RFA NO.721 of 2008 3. The family tree is as under: R.RANGAPPA NAYAK (LATE) JAYAMMA (LATE) GOWRAMMA, Aged 53 years, I ST WIFE II nd WIFE. RANGADHAMA NAYAKA, Aged 23 years, SON Un-married. R.GNANESH. Aged 38 years R.MANJULA, Aged 30 years SON DAUGHTER P.JAGADAMBA, Aged 35 years WIFE LAKSHMI RAJAIAH, Aged 40 yrs, HUSBAND G.CHIRANJEEVI NAYAKA Aged about 50 years, SON, UN-MARRIED G.MANJUNATHA NAYAKA Aged 17 years, SON 4. The facts of the case are as under: The present plaintiff namely R. Manjula is the sister of defendant No.1/R. Ganesh. Plaintiff and defendant No.1 are the children born through first wife Devamma and R. Rangappanaik. The plaintiff filed the suit against her brother defendant No.1 seeking relief of partition and separate possession. Plaintiff asserted that she along with defendant No.1 are the sole heirs of R. Rangappanaik and the said Rangappanaik died in 1992 leaving behind - 4 - RFA NO.721 of 2008 plaintiff and defendant No.1 as his class-I heirs. Plaintiff therefore, asserted that she being the daughter is entitled for half share in the suit schedule properties along with defendant No.1. Plaintiff also specifically pleaded that first defendant is receiving rent of Rs.10,000/-from item No.1 of suit schedule properties. The present suit is filed alleging that though plaintiff repeatedly requested defendant No.1 to effect partition, defendant No.1 went on postponing on one or other pretext and therefore, plaintiff issued a legal notice on 9.10.2001 calling upon defendant No.1 to effect partition by metes and bounds. Since defendant No.1 replied to the legal notice taking untenable stand, the present suit is filed seeking the relief of partition and separate possession. 5. The plaint which was originally instituted on 12.4.2002 was only against defendant No.1. Defendant No.1 though did contest the suit by filing the written statement however, he did not prosecute his case further. 6. Plaintiff however got herself examined as P.W.1 and in the light of the evidence let in by plaintiff, the trial - 5 - RFA NO.721 of 2008 Court decreed the suit by judgment and decree dated 17.1.2005. 7. Defendant No.1/Ganesh preferred an appeal before this Court in RFA.880/2005. This Court vide judgment and decree dated 18.8.2005 allowed the appeal and the matter was remitted back for fresh trial. Defendant No.1 was permitted to lead evidence in support of his contention. 8. Upon remand, defendant No.1 produced the alleged receipt indicating that defendant No.1 had paid a sum of Rs.25,000/- on 5.6.1998 and he examined himself and his wife as D.W.5 in support of their contention and demonstrate that plaintiff has received a sum of Rs.25,000/- as per Ex.D2. The trial Court on examining Ex.D2 which is the receipt alleged to have been executed by plaintiff on 5.6.1998 and the Will bequeathing northern portion of suit schedule property in favour of defendant No.2/second wife of testator, held that the testamentary arrangement in favour of defendant No.2 as per will dated 4.2.1992 evidenced at Exhibit D.3 is proved. However the - 6 - RFA NO.721 of 2008 trial Court disbelieved the receipt evidenced at Exhibit D.2 set up by defendant No.1. Accordingly, issue No.3 relating to payment of a sum of Rs.25,000/- was answered in the negative. Trial Court has accordingly, decreed the suit by recording a finding that Ex.D2 is a concocted document and the alleged payment of Rs.25,000/- is not substantiated by defendant No.1. Suit is decreed by holding that plaintiff is entitled for half share in the southern half of the suit schedule properties as per Ex.D1. Trial Court also held that plaintiff is entitled for mesne profits in terms of the provision of Order 20 Rule 18 of CPC.The said judgment is under challenge. 9. The learned Senior Counsel re-iterating the grounds urged in the appeal memo would vehemently argue and contend that the trial Court failed to note that the testator's ultimate object was to see that the properties covered under the Will should pass on to the next generation, to be more particular, to the children of defendant No.1. Therefore, he would contend that even if the condition is violated, the right created in favour of his - 7 - RFA NO.721 of 2008 children under the Will cannot be negated by granting a share to the plaintiff to an extent of half share on the premise that the condition is not complied by defendant No.1. He would further point out that non-performance of the condition should not adversely affect the ultimate beneficiaries as contemplated by the testator while executing the Will vide Ex.D1. He would further point out from the records that defendant No.1 did make partial payment of Rs.25,000/- and therefore, the condition imposed by the testator was partially complied and since fraction of the stipulated amount was paid though beyond deadline, plaintiff does not acquire a right to enforce partition contrary to the wish of the testator as indicated in the Will vide Ex.D1. 10. Per contra, learned counsel appearing for plaintiff justifying the conclusions and reasonings recorded by the trial Court while granting half share in the southern portion which is the subject-matter of Ex.D1, she would point out that the Will expressly provided that bequest in favour of defendant No.1 is conditional on payment of - 8 - RFA NO.721 of 2008 Rs.1,00,000/- to the plaintiff within two years of death of the testator. He would further point out that testator died in 1992 and even if the alleged receipt is accepted, the same is dated 5.6.1998 showing alleged payment of Rs.25,000/-, which is even otherwise beyond the deadline specified in the Will. Citing Section 137 of the Indian Succession Act, he would contend that since the condition is not fulfilled within the stipulated period, the plaintiff's right to seek partition as a Class-I heir of testator is not taken away. The right to seek partition stands revived immediately after expiry of two years from the date of death of the testator, which contained a condition that defendant No.1 would pay Rs.1,00,000/- to his sister. The fact that Rs.1,00,000/- is not paid and even otherwise Ex.D2 is held to be a forged document as per the expert's opinion which is secured after remand by this Court, he would point out that no interference is warranted in the case on hand and therefore, requests this Court to dismiss the appeal. - 9 - RFA NO.721 of 2008 11. Heard the learned Senior Counsel appearing for defendant No.1 and the learned counsel appearing for plaintiff. 12. The following point would arise for consideration: "(i) "Whether the trial Court's finding that defendant No.1’s failure to comply with the condition in the Will, requiring payment of Rs.1,00,000/- to the plaintiff within two years from the testator’s death, entitles the plaintiff to claim her legitimate share in the suit schedule properties as a Class-I heir under Section 8 of the Hindu Succession Act is perverse and warrants interference by this Court?" Finding on the point: 13. It is not in dispute that defendant No.1 has set up a Will asserting that his father has created a life interest in his favour and after his demise the properties - 10 - RFA NO.721 of 2008 would pass on to his son in respect of the suit schedule properties. Records, more particularly Ex.D1, reveal that the testamentary disposition was subject to a specific condition that defendant No.1 would pay a sum of Rs.1,00,000/- to the plaintiff within two years from the date of death of the testator. Records reveal that testator died in 1992 thereby commencing the time for compliance with a conditional bequest. Though defendant No.1 has made a feeble attempt by placing reliance on Ex.D2, which is a receipt for having paid a sum of Rs.25,000/-, the expert's opinion clearly negates the assertion of defendant No.1 that he has paid a sum of Rs.25,000/- in 1998. 14. Therefore, the core question which requires consideration is as to whether the condition attached to the bequest in favour of defendant No.1 is a condition precedent. It is a trite law that testamentary bequest can be absolute or conditional and where a condition is clearly expressed as a precedent to the vesting of a right, the same must be fulfilled within the stipulated period. The - 11 - RFA NO.721 of 2008 Will in question vide Ex.D1 clearly specifies that the life interest conferred upon defendant No.1 is subject to performance of an obligation namely payment of Rs.1,00,000/- to the plaintiff. This condition is time bound requiring performance within two years of the testator's death. Defendant No.1 has miserably failed to substantiate the payment of said amount within the time prescribed. 15. The material on record clearly demonstrates that there is a clear default on the part of defendant No.1. In this regard, Section 137 of the Indian Succession Act squarely applies. In the present case, defendant No.1 has failed to substantiate that the condition was complied. Records, on the contrary, reveal that the condition imposed under Ex.D1 remained unfulfilled within the prescribed period. Therefore, the bequest to the extent of its conditional nature fails. The contention of defendant No.1 that the ultimate benefit is to accrue to his son does not cure the breach of primary condition governing his own right and devolution upon defendant No.1's son is - 12 - RFA NO.721 of 2008 contingent upon the subsistence of life estate in favour of defendant No.1, which itself has been defeated due to default in not complying the condition incorporated in the Will. 16. Upon remand, though defendant No.1 marked the alleged receipt as per Ex.D2 and examined his wife, the hand written expert's opinion clearly reveals that it is a forged document. It is a well settled principle of succession law that where a bequest is made subject to condition precedent, the failure to fulfill such condition results in the failure of bequest itself. In the present case, testator while creating life interest in favour of defendant No.1, he clearly imposed a clear and mandatory condition of payment of Rs.1,00,000/-. Once Ex.D2 is excluded from consideration, there remains no material whatsoever required to indicate that the condition set out in the Will was ever complied with. In such circumstances, defendant No.1 having failed to satisfy the condition upon which his own right is founded, cannot be permitted to derive any indirect advantage or benefit from the further - 13 - RFA NO.721 of 2008 testamentary arrangement made by the testator in favour of his grand children. The devolution of interest on the next generation, as contemplated by the Will is predicated entirely on the effective vesting of a valid life interest on defendant No.1, which in this case has failed due to non- performance of the condition. 17. The trial Court, post remand, has given a fair opportunity to defendant No.1 to lead rebuttal evidence. This Court also cannot ignore the conduct of defendant No.1 and his attempt to over come the condition imposed in Ex.D1. 18. On overall independent assessment of oral and documentary evidence, this Court is of the view that plaintiff's right to seek her legitimate half share stood immediately revived since defendant No.1 failed to comply the condition imposed in the Will. The right to seek her legitimate share cannot be taken away for non-compliance of condition. However, this Court would make it clear that insofar as remaining half share in the southern portion is concerned, defendant No.1 would continue to have life - 14 - RFA NO.721 of 2008 interest and after his demise, the property would devolve on his son. Accordingly point formulated is answered in the ‘negative’. 19. With these observations, this Court proceeds to pass the following:
Decision
ORDER The appeal is devoid of merits and accordingly, stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB Ct:vh